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Armed Forces / Military Family Leave

All employers should be aware that the 2008 National Defense Authorization Act (NDAA) created 2 new categories of leave (under the Family & Medical Leave Act) for family members of individuals servicing the U.S. military:

All employers have been asked to provide such leave to their employees; however, only employers with 50 or more employees are required to give Military Family Leave (MFL) to qualifying employees, and only those employees of employers with 50 or more employees will receive disability benefits. Employees of employers with 49 or less employee receive unpaid leave.

The NDAA therefore applies to all U.S. businesses.

The Department of Labor (DOL) has not yet issued regulations interpreting the new Military Family Leave; however, it has issued a temporary poster, which must be posted by businesses with 50 or more employees next to existing FMLA postings.

The two categories of MFL created by the NDAA are:

Leave to care for family member with service-related injury or illness. This leave provides up to 26-weeks during a 12-month period (an exception to the normal 12-week-per-year limit) for the spouse, children, parents or next-of-kin of a covered service member to care for that service member. A covered service member is defined as a member of the Armed Forces (including Coast Guard & Reserves) who is undergoing medical treatment, recuperation or therapy, or is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.

Next-of-kin is defined as the nearest blood relative of that individual; Domestic Partners registered under state law do not qualify.

Leave for service related exigencies. This leave provides up to 12-weeks during a 12-month period for employees if their spouse, child, parent or next of kin is on active duty, or has been notified of an impending call or order to active duty in the Armed Forces in support of a qualifying contingency operation. Such leave can be taken intermittently or on a reduced schedule; and it will count towards (i) the normal 12-week maximum for annual leave, or (ii) the new 26-week maximum where leave to care for an injured service member is also used.

California employers should remember that the NDAA (and thereby MFL) is a federal law and independent of California’s Military Family Leave (which permits a spouse of someone in the Armed Forces, National Guard or Reservists, on at least 2-days notice, to take up to 10-days unpaid leave provided the employee is regularly scheduled to work at least 20-hours per week and his or her spouse is on active duty/currently deployed and scheduled to be on leave.)

Should you have questions on the above, or any other employment matter, please call Neil Klein or Doug Wade.

If you or your company has any questions on how to avoid or defend against a claim for retaliation by a California employee, please contact Neil Klein or Doug Wade.